Citation Nr: 9928952
Decision Date: 10/06/99 Archive Date: 10/15/99
DOCKET NO. 98-18 642 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to an increased rating for residuals of
dislocation of the right shoulder, status post Magnuson-Stack
arthroplasty with avascular necrosis of the right humeral
head, currently rated 40 percent disabling.
2. Entitlement to an increased rating for residuals of
rotator cuff injury of the left shoulder with dislocation,
status post Bankart repair, currently rated 20 percent
disabling.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
The veteran and his fiancée
ATTORNEY FOR THE BOARD
K. Conner, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1986 to
March 1989.
This matter comes to the Board of Veterans' Appeals (Board)
from an April 1998 rating decision of the Department of
Veterans Affairs (VA) New Orleans Regional Office (RO) which
"confirmed" a 30 percent rating for a right shoulder
disability and a 20 percent rating for a left shoulder
disability.
In that regard, it is noted that by February 1996 rating
decision, a 40 percent rating was assigned the veteran's
right shoulder disability. He was informed of the increase
to 40 percent, appears to have been paid at that rate, and it
does not appear to have ever been reduced. The Statement of
the Case, promulgated in conjunction with this appeal, lists
the rating for the right shoulder disability as 40 percent.
Thus, it appears that the April 1998 rating decision denying
an evaluation in excess of 30 percent was a harmless
administrative error which has been corrected. As such, the
issues currently before the Board are as set forth on the
cover page of this Remand.
In April 1999, the Board remanded this matter to afford the
veteran a hearing before a member of the Board at the RO, as
requested; in July 1999, he and his fiancée testified at a
Board hearing at the RO.
It is noted that at his July 1999 hearing, the veteran raised
a claim of entitlement to a total disability rating based on
individual unemployability due to service-connected
disabilities (TDIU). This matter has not yet been addressed
by the RO, and inasmuch as the TDIU claim is not inextricably
intertwined with the issues on appeal, it is referred to the
RO for appropriate action.
REMAND
Initially, the Board finds that the veteran's claims for
increased ratings for his left and right shoulder
disabilities are well grounded. Therefore, VA has a duty to
assist him in the development of facts pertinent to these
claims. 38 U.S.C.A. 5107(a).
The duty to assist the veteran in obtaining and developing
available facts and evidence to support his claim includes
obtaining an adequate VA examination. This duty is neither
optional nor discretionary. Littke v. Derwinski, 1 Vet. App.
90 (1990). The record reflects that the veteran most
recently underwent VA medical examination in conjunction with
his claim in November 1997.
However, at his July 1999 Board hearing, he indicated that
his disabilities had dramatically worsened since that time.
The Court has held that where the veteran claims that a
disability is worse than when originally rated, and the
available evidence is inadequate to evaluate the current
state of the condition, VA must provide a new examination.
Olsen v. Principi, 3 Vet. App. 480, 482 (1992).
Moreover, it is noted that VA has a duty to acknowledge and
consider all regulations which are potentially applicable
through the assertions and evidence of record. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). According to the U.S.
Court of Appeals of Veterans Claims (Court), a veteran can be
rated separately for different manifestations of the same
injury, where "none of the symptomatology for any one of
[the] conditions is duplicative of or overlapping with the
symptomatology of the other two conditions," and that such
combined ratings do not constitute pyramiding prohibited by
38 C.F.R. 4.14. Esteban v. Brown, 6 Vet. App. 259, 262
(1994).
At his July 1999 hearing, the veteran indicated that he had
symptoms which may be indicative of neurological impairment
in his shoulders. His representative argued that the
veteran's right shoulder disability is more appropriately
rated under Diagnostic Code 8513. As such, after obtaining
the results of the VA medical examination, the RO should
consider whether all applicable symptomatology of the
veteran's disabilities is appropriately rated, to
specifically include whether any surgical scars, neurological
impairment, and musculoskeletal disabilities merit separate
disability ratings. In that regard, it is noted that
additional disability may also be awarded for limitation of
motion due to pain, weakened movement, excess fatigability,
or incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995).
Finally, at his July 1999 hearing, the veteran indicated that
he received recent treatment for his shoulder disabilities at
the VA Medical Center (MC) in Alexandria, as well as at a
private facility, Humana Hospital, in Marksville. These
records have not been associated with the claims folder; the
most recent VA outpatient treatment records in the claims
folder are dated in January 1998. Further, a review of the
record reflects that a VA Chapter 31 vocational
rehabilitation folder may have been established in this case.
The aforementioned Chapter 31 folder and any counseling
records are not currently of record and may be pertinent.
To ensure that the VA has met its duty to assist the veteran
in developing the facts pertinent to the claims, the case is
REMANDED for the following actions:
1. The RO should contact the veteran and
request that he identify all medical care
providers who have treated him since
January 1998 for his service connected
left and right shoulder disabilities.
After securing any necessary
authorization for release of medical
information, the RO should obtain copies
of all records (not previously obtained)
for association with the claims folder,
to include records from Humana Hospital
and the Alexandria VAMC.
2. The RO should obtain the veteran's
Chapter 31 vocational rehabilitation
folder and counseling records and
associate them with the claims folder.
If such records do not exist, that should
be stated so for the record.
3. After the above records, if any, are
secured and associated with the claims
folder, the veteran should then be
afforded another VA medical examination
to determine the nature and severity of
his service-connected left and right
shoulder disabilities. The veteran's
claims folder must be made available to
the examiner for review in conjunction
with the examination of the veteran. All
tests, studies, and consultations with
specialists deemed necessary by the
examiner should be conducted. The
examiner should be requested to
separately identify, to the extent
medically feasible, all residuals of the
veteran's left and right shoulder
disabilities (such as scars, neurological
impairment, etc.) and to describe the
severity of each symptom. The examiner
should also be requested to specifically
note whether there are any signs of
instability, muscle wasting, atrophy,
weakness, and whether the veteran's
disabilities result in any limitation of
function due to pain, loss of motion due
to weakened movement, excess
fatigability, or incoordination.
4. Thereafter, the RO should
readjudicate the veteran's claims and
consider whether all applicable
symptomatology is appropriately rated, to
specifically include whether any scars,
nerve damage, or musculoskeletal
disabilities merit separate disability
ratings. The RO should also consider
whether the provisions of 38 C.F.R. §§
3.321(b)(1), 4.10, 4.40, 4.45, and 4.59
are applicable to the veteran's claims.
If the benefits sought on appeal are not granted, the veteran
and his representative should be furnished a Supplemental
Statement of the Case and given the opportunity to respond.
The case should then be returned to the Board for further
appellate consideration.
The veteran has the right to submit additional evidence and
argument on the matters remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
Also, VBA Adjudication Procedure Manual, M21-1, Part IV,
directs the RO to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J.F. GOUGH
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).